I. II.

Introduction Employer-Employee relationship

Art. XIII, Section 3. The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all. It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled to security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and decision-making processes affecting their rights and benefits as may be provided by law. The State shall promote the principle of shared responsibility between workers and employers and the preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace. The State shall regulate the relations between workers and employers, recognizing the right of labor to its just share in the fruits of production and the right of enterprises to reasonable returns to investments, and to expansion and growth. Art. II, Section 18. The State affirms labor as a primary social economic force. It shall protect the rights of workers and promote their welfare. Art. III, Section 8. The right of the people, including those employed in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law shall not be abridged. Art. IX, B, Section 2. (1) The civil service embraces all branches, subdivisions, instrumentalities, and agencies of the Government, including government-owned or controlled corporations with original charters. Notes: Rights of employees under ConstitutionArticle XIII, Section 3, Labor 1. full protection 2. peaceful concerted activities (strike/unions/collective bargaining): right to strike is made by union who collectively bargain; take away the right to strike because it is an aggressive method, instead file a complaint or resort to civilised manners 3. security of tenure 4. humane conditions of work (arguments against it: cannot be defined) 5. living wage: (arguments against it: nobody understands it, its a lie, nobody tries to fulfil it) 6. participating in decision making 7. full employment 8. equality of employment 9. just share in fruits In the absence of the law, the employer tends to oppress the employee, thus having more advantage than the latter. This is why the Labour Code and Constitution tries to weigh in or favour the employee to even out and balance the leverage between the employee and employer thus enabling them to negotiate, contract, bargain. Who is an employee? It is important to identify the employee so that we know to whom the Labour Code is to be applied to. Articles 97(b)(c) Definition of employer, employee "I know you, but you're not my employee Is the relationship one of employee-employer? Use four-fold test: 1. Selection and engagement of the employee: Employers power to select and engage an individual into a work contract manifests the employer's ability which creates an employer-employee relationship 2. Payment of wages: An employee can well establish an employer-employee relationship wherein he is enlisted in the payroll of said employer. 3. Power of dismissal: Exercising the power to dismiss or terminate an employee is apparent evidence that there exists an employer-employee relationship. For which there none, an employer cannot exercise said capacity otherwise.

4. Employer's power to control the employee with respect to the means and methods by which the work is to be accomplished: This is the so-called "control test" which is the most important element. In the absence of the power to control the employee with respect to the means and methods by which his work is to be accomplished, there is no employer-employee relationship between the parties. III. Subcontracting: see Labor Code Art. 106-107, D.O. No. 18A series of 2011

Notes: Subcontracting is a trilateral relationship, wherein: Three parties: 1. principal: has work that wants to be done and decides to farm out or put out 2. subcontractor: entity which accepts the work under its own responsibility, engages other people to do the work 3. subcontracted worker: one who does the work Two contracts: 1. principal-subcontractor 2. subcontractor-worker Two kinds of subcontracting: 1. Labor-only: a. There is a labor-only contracting where a person supplying workers to an employer does not have substantial capital in terms of tools, machinery, equipment, work premises, among others, and b. the workers recruited and placed of such person are performing activities directly related to the principal business of the employer. c. PROHIBITED; d. legal result: the worker is directly employed by principal, the subcontractor is deemed the agent of the principal e. you can sue both the principal and the subcontractor 2. Job contracting/legal/legitimate/independent: a. has substantial capital in the form of tools etc b. workers perform work not directly related c. legal result: the principal and the work are not related, strangers d. solidary liability: subcontracted worker can go after the principal and subcontractor (i.e. payment of wages) PBC v Orpiada It was only when the four-fold test is insufficient did the Supreme Court look into the CESI What is economically more advantageous Employer-Employee relationship or Employer-Subcontractor-Employee relationship? x (ee-er) versus x+y (er-sc) 12/09 Section 4D.O. 18-A If the contractor is not registered, he is assumed to be labor-only IV. Kinds of employees 6. Seasonal 7. Fixed term employees 8. Fixed term employees turned regulars (see Purefoods)

Kinds of employmentSection 286, Labor Code 1. Regular 2. Casual 3. Casual turned regular 4. Project 5. Project turned regular Project employees to regular employees 1. Repeated rehiring for the same task 2. Work done is necessary and desirable

ProbationarySection 287, Labor Code 1. Probationary employment has its purpose of establishing the fitness of an employee to the job 2. At the time of engagement, the employee must be told that he/she is probationary 3. The employee must also be told or informed the passing of the probationary period and standards

4. May be turned regular if allowed to work after probationary period Teachers have a longer probationary period of three years Skills often involve a longer probationary period V. Special Workers

If PWD can do the work equally well as the abled-body person, there shall be no discrimination against the former. Employment of women: Art. 130, 132 are repealed; 132 is ignored Art. 133 is only applied to employees, does not cover discrimination on hiring of women and men Art. 138 does not need to prove the existence of employer-employee relationship; it is assumed to exist if all the requisites in this article are present. (No four-fold test needed) Homeworkers: employer gives/sells the employee raw materials, the employee uses these to make the finished product and give it back or sell it to the employer; means and method given to homeworkers; end result/finished product only dictated by employer VI. Conditions of Employment Art. 82. Government employees are covered by a different set of laws Field workers form part of the general rule if working hours can be determined Persons paid by results are persons paid by the number of items required and not of hours of work Why 8 normal work hours? 8 for work, 8 for leisure, 8 for sleep; American pressure to provide more jobs and health concerns Coffee breaks of not less than 20 minutes, once in the morning, once in the afternoon; compensable Even if employee is sleeping during work, its compensable Overtime must be consensual unless Art. 89 applies Weekly rest periods: employer is followed for determination of rest day unless rest day is for religious purposes; if they still disagree, half of the month will be divided: 2 rest days under employers preference, 2 for employees Holidays 12 regular holidays 3 special holidays Not worked 100% No pay worked 200% 130%

January 31, chinese new year, special holiday Service Incentive Leave may be converted to cash if not availed Leaves 1. 2. 3. 4. 5. 6. Maternity leaves Paternity leaves SIL Anti-violence against women and children leave of 10 days Solo-parents leave of 7 days Gynecological-operation related leaves of 2 months